22 September, 2020

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Prevent Capture Of The Constitution  

By Jayadeva Uyangoda

Prof. Jayadeva Uyangoda

A major point of great significance being debated in Sri Lanka these days is the validity of the actions of Sri Lanka’s president to sack his prime minister and swear in a replacement. The President has claimed a few times that his actions are entirely in accordance with the constitution. He has further clarified that prior to his action on October 26, he obtained legal advise.

President Sirisena, unlike his sacked prime minister, is not well versed with constitutional law. Therefore, it is entirely correct on his part to obtain legal clearance of his anticipated action from his advisors who posses professional background and expertise in law.

President’s lawyers seem to have advised him that it was legally correct to use the clause 42 (4) of the Constitution in sacking the incumbent prime minister and appointing a new person to the office of the PM.   

Value Framework

The important question is whether the Article 42 (4) under the 19th Amendment empowers the president to remove a prime minister from office at will. Since this clause is now so well known among the public, I refrain from quoting it.  But, both the wording of that clause, which is a part of the 19th Amendment, and the constitutional value framework now operating in Sri Lanka, do not grant the authority to the President to remove the prime minister from office.

It appears that the President has been advised by his legal team on the applicability Clause (42. 4) on two grounds. The first is that the interpretation ordinance enables the President to remove a prime minister from office by virtue of the fact that he is the appointing authority.  The second is that the overall conceptual and institutional framework of the 19th Amendment, which re-calibrated the pre-existing scheme that existed under the original 1978 Constitution as well as the 18th Amendment, is irrelevant to President’s exercise of the powers granted under this clause.

In the debate among experts so far, there is a weak argument to defend the presidential action and strong argument to question its constitutionality.  The supportive arguments are based on dubious interpretations of a few clauses of the constitution, totally ignoring the explicit meanings of its clauses and the overall framework that enables the conceptual scheme of interpretation.

Partisan Interpretations

The situation now is that a vital clause of the constitution is being subjected to partisan interpretation by a section of the political class that is determined to capture and retain state power. For them, the constitution is a means to an end, and not an embodiment of norms and values that a democratic polity and its citizenry should cherish.  

At times of power struggles among rival factions of the political class, what fall victims to the whims and fancies, and short term agendas, of professional politicians as well their lawyers are not only the words and clauses of a constitution, but also those norms and values that make the constitution relevant to the lives of ordinary citizens.  

Constitution as Victim

The present power struggle makes the country’s Constitution and democratic values enshrined in it its prime victims. Therefore, it is necessary that its interpretation and the application of its clauses to controversial political circumstances caused by those who wield state power be entrusted to a wholly impartial body of men and women. Theoretically, this is the task of the Supreme Court.  However, the nature of the current power struggle in Sri Lanka is such that questions have emerged whether the judiciary is the most appropriate forum to settle an essentially political dispute about power.

Since all the protagonists do not seem to be willing go to the Supreme Court seeking a determination on the constitutional questions emerged in the dispute, its resolution is left to professional politicians who continue to engage in a zero-sum power struggle. 

In case the majority of MPs in parliament approves the removal of the incumbent prime minister and the appointment of the new prime minister, it would bring two other dubious possibilities to the current conundrum: (a) constructing an interpretation to a vital constitutional clause in a manner that wholly transgresses the spirit of the 19th Amendment which is still in force, and (b) creating a precedence in which no prime minister, including the person who has been freshly appointed, or a minister would be free from arbitrary dismissal by the president who can now treat all of them as mere public servants expected to be subservient to him. 

This new construction will eventually crate a situation where the ministers, deputy minsters and state ministers will also be under the mercy of the President as their appointing authority. It will in effect reverse the process that began in 2015 to reform Sri Lanka’s executive presidency. Is it then the case that President Sirisena is re-introducing through backdoor a key element of the old constitutional scheme of JR Jayewardene and Mahinda Rajapaksa?

Wouldn’t this be a prelude to a new power struggle between the president and the new prime minister whose understanding of political power would be very different from that of President Sirisena?

There are now rumours that parliament would be reconvened on November 05. We don’t know what compromises are being negotiated between the disputants. Let us hope that there would be at least few MPs who would present in parliament as well as outside a sober- in-depth, and objective analysis the grave constitutional crisis the country is facing.

Even an incompletely democratic constitution is still a charter that defines the rules and limits of the conduct of political power.  It is too serious a document to be left to those who are involved in a ruthless struggle for power to capture for their own ends. 

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Latest comments

  • 9
    0

    One of the main planks of the January 8 Yahapalanaya platform was the reform of executive presidency. Article 42 (4) is an expression of the will of the people in that regard. Sira and his legal advisors playing with that clause for a total power grab from the very people and the Parliament shows how deviant and perverted they are. This is the deadliest attack on democracy since independence – worse than 1962, JVP, JR, LTTE, MARA 2010 – 2014.

    • 7
      0

      It pains me to say it ………. but from his actions ……….it seems ……. poor president Sirisena wasn’t even a good Grama Sevaka …….. unfortunately

      • 2
        3

        What Tosh Uyangoda! how can a constitution – a piece of paper – be a victim??!
        In fact, the Constitution and all the endless games played to draft a new constitution (like the endless delimitation Bill), is a big part of the crisis in the first instance.The Constitution game enabled Ranil to be appointed PM by fiat with just 41 Minister. No one talks about the SPIRIT of the Constitution, which is to enable Democracy and Economic and Social Justice for all.
        So called xperts like Uyangoda pontificate about Constitution as victim and distract from the root cause of the crisis in Lanka, which is a legitimacy crisis given that the Diyawenna Parliament has been turned by BOTH Bondscam Ranil and his predecessor MR into a Cesspit of Corruption and horsetrading, with a culture of immunity and impunity for politicians who commit endless Financial Crimes and Hate crimes against the people of Lanka.
        Best thing is for all to agree that the current “cesspit of corruption” parliament should be dissolved and new elections held–with an age limit for of 68 years old to ensure that the younger generation may clean up the current mess by the current doddering, power crazed generation of mostly corrupt politicians.

  • 6
    0

    President is not only well versed in legal interpretation but he is also trapped by MR family .end of the day; all blame come upon him..
    It is not in his personal interest to do so;
    His action earned enemies all over the world; Europe and many countries did not like his action ..
    He is less educated in geopolitics..
    Look at the quality of talk Ranil gave at Oxford; where m&s with Ranil in that ..
    What about MR …he is little bit better M&s ..
    But Ranil is highly educated than other two .

    • 3
      0

      Lanka 3 – “He is less educated in geopolitics..”. Sillysena is not educated at all. He is a traitor and should form a party of his own, namely, SLMP (Sevalaya, Liar, Mala-perethaya, Patholoya) and arrange to bury himself alive with Medamulana Meeharaka’s or Gotler’s help!

  • 4
    0

    Thanks.
    I agree very much with what is said.
    “(The Constitution) is too serious a document to be left to those who are involved in a ruthless struggle for power to capture for their own ends.”
    Remember the cynicism of the 1978 Constitution (also loaded heavily against the opposition).
    That folly cost the country dearly.

  • 2
    0

    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2

  • 1
    0

    New King was part of Old Royals. Now his part of Old Royals. Ranil will try to from National unity goverment accepting a minor minister post in Latest Royals’ goverment.

    Ranil and Karu have become unreliable. Voters, NGOs, activists, academics have to keep advancing this fight. IC will have to accept if there is an election declared because that is also a democratic process. In that circumstances, Ranil will back up from campaigning in election like he did in LG election. He will purposefully give chance to Old Royals to take over. .

  • 1
    5

    The purpose of this article is to justify the UNP’s reluctance to go to the Supreme Court. I am not convinced. Would a UNPer please elaborate the point.

    The writer is exposing his bias when he refrains from offering the obvious compromise of immediately holding a general election. He neither trusts Supreme Court nor the people. What the heck he is sujesting us to do. We know it is a too serious matter to be left in the hands of these bastards. I suggest let us go to the people.

    Soma

    • 0
      0

      There is nothing obvious in this business, and there is nothing to compromise.
      The issue is a matter of constitutional legitimacy for the Parliament to resolve.
      Failing that there is a case for a general election.

  • 2
    0

    Why Constitution is Supreme when there are countries with no constitution. Besides, There were so many who told our constitution is CRAP. I can not believe is this talk form a former Cheguvera member who ruined the country.

    • 0
      0

      >> Why Constitution is Supreme when there are countries with no constitution.
      Pretty much all countries have a constitution. Some countries don’t have a written (codified) constitution, but they still respect and have the highest regard towards it.

  • 2
    0

    How about the UNP constitution ? Is it only for old Royalists ?

    All these things happen when a major political party has become a joke led by a curse

  • 0
    0

    Capture or Kidnap?
    We have not been told, yet, as to why RW was sacked.

    Incompetence? A lay-Lankan would have expected a ‘No-Confidence-Motion (NCM)’. (This was tried once before).

    Moral turpitude? Dissolve parliament and call elections. (Contentious maybe).
    .
    The parliament being left untouched after the RW-sack, surprised all of us. MS seems to have reckoned that an NCM will not deliver. His gut feeling was the a fresh election may in fact go against him. Was self-preservation the motive?

    Lay-Lankans thought that the constitution has been captured. The possibility of a rescue gave us hopes. .
    .
    Appointment of MR as the PM was a big surprise. The RW-sack together with the MR appointment suggests that the constitution has been kidnapped.
    .
    Lay-Lankans using nothing but commonsense have concluded that we have a coup.
    Will a court find a coup legal?

  • 0
    0

    Anything that goes before a COurt becomes more or less a technical discussion amongst lawyers and judges.

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